Mock exam help Flashcards
Introduction
The law is a set of standardised procedures used in the enforcement of basic rights and regulations of society.
What did Sir John Salmond define law as?
The principles used in the administration of justice
What can justice be viewed as? (in intro)
Law seeks to be just - but justice is hard to define. It can be viewed as a principle of fairness which leads to a discussion of what fairness is.
What does Lord Wright define justice as?
‘What is just in a particular case is what appears just to the just man’
Second Paragraph opening (before substantive/procedural)
Law is often seen as everyone being treated in the same way, no matter who the person. Problems occur when law is unjust - e.g marital rape and apartheid.
What is procedural law?
Views something as just if the correct procedures are followed - even if they are not fair at first.
Supports of procedural law say for there to be justice, it’s important everyone to be treated the same and have the same rights.
An example of a difficulty arising is in the case of Pretty - where the husband helped his wife die after her being diagnosed with a disease - The court of human rights was against her, as if they made this case an exception of the current law, it would open floodgates to other cases. This example illustrates the connection between law and justice, and the difficulty that sometimes occurs.
What is substantive law?
The idea that something is just if it seen as fair - attempts to define fair have led to different definitions of justice.
Explain Plato’s views.
Argued that all elements of society are in balance and working together.
Plato argued that society is just when each class fulfils its corrects function and there is a harmonious relationship between them.
Explain Aristotles views.
Distributive justice-
Everyone should get what they deserve.
Should be a fair distribution of society’s wealth and responsibilities on the basis of merit; giving each person what they have earned based on their contribution to society.
He argued that allocating resources on the basis of needs is unjust - it rewards the lazy.
Explain Aquinas views.
Corrective justice - where just is balancing out the gains and losses - ensuring the offender does not benefit from breaking the rules and the victim does not suffer loss.
Explain Marx views.
Argued thst each gives all they can, each gets what they need, no matter what contribution.
Explain Utilitarianism views (Bentham)
Measures the justice of law on the basis of consequences - if it benefits the majority of society then it is just.
The law may create some social inequalities and benefit some at the expense of others.
Explain Rawls views.
Argued that inequality can only be just if it benefits all - not just the majority.
Two examples of procedural rules.
Connections can be examined by looking at these rules.
Aims of sentencing-
could be just as each one benefits either the public or the offender themselves.
- REHABILITATION; helps the offender to become healthy again so that they are safe to let out
- ^ Aristotle argues that this is just as it is benefitting the D and helping them to stop offending. Rawls would agree as it is helping the disadvantaged.
- Bentham would disagree as it is not a just punishment - it is helping out the one who has done the offending and therefore not creating greater happiness for the majority. Public may see this as not a strong enough punishment.
- REPARATION; D must pay back what is owed. Aquinas would argue that this is just as it is restoring balance and paying back their debt to society - Bentham would argue that this is not just as it does not benefit greater society, money is not a very harsh punishment for a crime that could have affected the greater majority’s happiness.
Appeals-
Gives the opportunity to right a wrong decision that has been made.
- e.g stephen lawrence, an appeal led to just being served.
- not always successful and could lead to unjust - Kevin Martin appeal was longed out - spent 26 years in prison for a crime that he did not commit - compensated but does not repay for time spent imprisoned.
- Aquinas argues that appeals are just as they help to restore balance and ensure that D gets what they truly deserve - Mill argues that this does not benefit the greater good as it could be unsuccessful for someone who is not guilty - also appeals can sometimes get declined if there is no belief that the appeal is worth it.
Two examples of Substantive law rules.
Mandatory life sentence-
- Not just, people get the same sentence no matter the blameworthiness. e.g mercy killers get the same as cold blooded killers.
- e.g R v Inglis, a mother helped kill her son after he gets put into a vegetative state as she believed he was in pain, could be seen as unjust as she is not as dangerous as a cold blooded killer, and was doing it to help stop his suffering.
- Utilitarians argue that this is unjust as it does not benefit the greater good, the majority will not be happy with this outcome.
- Aristotle would argue that this is just as murder is murder, and all should be treated in the same way and get what is deserved - a high sentence.
Defences can help with the justness of sentencing-
- For example in the case of Byrne, he appealed and his MLS got quashed due to his mental capacity. Bentham would argue that this is not just as it does not benefit the greater good - many would find this distrubing and disagree with it.
- Rawls would argue that this is just as it is helping the disadvantaged members of society.
